On March 26 and 27, the Court will hear oral argument in the same-sex marriage cases, Hollingsworth v. Perry (the challenge to California’s Proposition 8) and United States v. Windsor (the challenge to Section 3 of the federal Defense of Marriage Act). The first briefs in the cases will be filed on January 22. In advance of those filings, the blog is publishing a series of posts by Marty Lederman of the Georgetown University Law Center on the Article III questions the Court has asked the parties to address in the two cases. This is the third post in that series.

In my previous post, I explained that the case for the Court’s Article III jurisdiction to adjudicate United States v. Windsorappears to follow from the historical precedents of United States v. Lovettand INS v. Chadha, and from the Court’s justiciability holdings in Chadha itself. The challenge for the appointed amicus, Professor Jackson, then, will be to explain how and why the Court should distinguish or decline to follow the precedents of Lovett and Chadha.

I can imagine several different theories in support of the view that there is no “case or controversy” here. (This is not to say that Professor Jackson will invoke all of these arguments — I doubt she will — or that she won’t come up with something different altogether. But these are the arguments that have emerged in my conversations with colleagues.) Roughly in order of least to most plausible:

a. The parties agree on the question presented. The two incontrovertible parties before the Court — Edith Windsor and the United States — presumably will not be arguing against one another on the merits, since they agreethat DOMA Section 3 is unconstitutional. If, as the Court indicated in Massachusetts v. EPA, one of the primary functions of the “case or controversy” requirement is “[t]o ensure the proper adversarial presentation” to the Court on the question presented, what happens when the parties are not adverse to one another on the question presented? How can there be a “controversy,” one might wonder, if the parties are in alignment on the question they’re asking the Court to resolve?

This particular puzzle occurs regularly in the Court, however, and yet the Court never concludes that the agreement between the parties on the question presented precludes exercise of the Court’s jurisdiction. For example, the federal government sometimes “confesses error” on the question presented, and aligns itself with its adversary on that question — or even on the invalidity of the judgment below, as in Young v. United States. Or, as in this very case, sometimes the Court cannot reach the merits question without first resolving a jurisdictional issue on which the parties agree. In such cases, the Court frequently appoints an amicuscuriae to argue the undefended side of the question. (A recent student note offers a very useful, detailed account of the Court’s appointed amicus practice.) To take just four of the most recent, high-profile examples:

— In Dickerson v. United States, the Court appointed Paul Cassell to argue that 18 U.S.C. § 3501 superseded Miranda and was constitutional, since the United States agreed with Dickerson that Section 3501 was unconstitutional.

— In Bond v. United States, in the October 2010 Term, the Court appointed Stephen McAllister to argue that the petitioner, a criminal defendant, lacked standing to challenge her conviction on the grounds that the statute in question “violated the Tenth Amendment,” a position that the United States had argued in the court of appeals but had then repudiated.

— The Court appointed Bob Long to argue in last Term’s ACA case that the Anti-Injunction Act barred the suit, where the parties agreed that it did not.

— In Windsor itself, the Court has appointed Professor Vicki Jackson to argue that the Court lacks jurisdiction, since the United States and Windsor agree that the Court has jurisdiction to reach the merits. The appointment of an amicus here is thus analogous to what happened in Hohn v. United States, in which the Court appointed Jeffrey Sutton as an amicus to argue that the Court lacked (statutory) jurisdiction, since both the United States and the petitioner-defendant agreed that the Court had jurisdiction.

On occasion, the Court-appointed amicus actually carries the day — most famously in Bob Jones University v. United States,in which the Court ruled 8-1 that amicus Bill Coleman was correct that racially segregated private schools were not entitled to tax-exempt status, rejecting the contrary view proffered by both the plaintiff-school and the United States. So, too, in 1989 the Court appointed John Roberts, currently the Chief Justice, as amicus to defend the judgment below in United States v. Halper, when the prevailing defendant failed to make an appearance in the Supreme Court. It was Roberts’s first argument before the Court, and an auspicious start: The Court ruled unanimously in his favor.

The Court certainly has assumed it has Article III jurisdiction in such cases; a ruling to the contrary here thus would have a fairly dramatic effect on what has become a common Court practice.

Whether the Court treats BLAG as a party or as an amicus in Windsor, its attorney Paul Clement will surely present robust, expert arguments in support of DOMA’s constitutionality, more than sufficient to guarantee a sharpened and adverse presentation of issues.

Indeed, such amicus presentation is not even necessary to ensure Article III jurisdiction in cases where there is no clash of positions between the parties. Before the Court began its relatively recent practice of appointing amici to argue unrepresented positions, it often adjudicated cases where only one side appeared — including in landmark cases such as Marbury v. Madison (where Secretary of State James Madison chose not to appear in the Supreme Court), Minor v. Happersett (the 1875 case holding that the Fourteenth Amendment did not afford women the right to vote), and Miller v. United States (the 1939 case that appeared to reject the “individual rights” view of the Second Amendment). And just last week, the Court decided a case in which the parties and the United States as amicus curiae — that is, all the parties that appeared at oral argument — agreed that the court of appeals erred on the question presented, and in which the Court did not accept the United States’s suggestion to “appoint an amicus curiae to defend the propositions of law that petitioner attributes to the court of appeals.” If the Court had Article III jurisdiction in these cases, surely the fact that the U.S. and Windsor are largely in agreement about the merits of the Fifth Amendment question is not a reason to question such jurisdiction here.

b. The United States is asking for an advisory opinion. One might argue that, in light of the agreement on the merits between the U.S. and Windsor, the Court’s opinion would be merely “advisory,” in the sense that it would not definitively resolve the legal relationship between the parties. But that is not the case: The Court’s resolution of the substantive question of whether DOMA Section 3 is constitutional will determine whether or not the U.S. reimburses Windsor for the estate tax she paid as executor of Thea Spyer’s estate. If the Court affirms the court of appeals, there will be a binding judgment requiring the U.S. to pay; but if the Court reverses the judgment, there will be no basis in federal law for the reimbursement (since Windsor will not be deemed a surviving “spouse” for purposes of federal law), and therefore the U.S. presumably would not make the payment.

Isn’t it possible, though, that if the Court holds that Section 3 is constitutional, the President might nevertheless decide to act upon his own contrary view of the Fifth Amendment, and reimburse Windsor the estate taxes she paid? To be sure, if that were the case, then the U.S. petition in Windsor would be a request for an impermissible “advisory” opinion — that is, seeking a judgment that a political branch would be free to ignore. It has long been established that an Article III court cannot render a judgment that would be subject to discretionary suspension or modification by another branch of government. See, e.g., Chicago & Southern Air Lines v. Waterman S. S. Corp., 333 U.S. 103, 113-14 (1948); Heyburn’s Case, 2 U.S. 408 (1792); cf. Muskrat v. United States, 219 U.S. 346, 362 (1911) (Court cannot answer question about federal law where there would be no judgment to be executed, leaving nothing but an expression of judicial opinion that would not even be binding in subsequent litigation between private parties).

But there’s no reason to think this is such a case. Indeed, the very reason the executive branch has enforced the statute, and taken the steps necessary to bring the case before the Court, is that the President and Attorney General have concluded — as did the executive branch in Chadha and Lovett — that “the judiciary is the final arbiter of the constitutional claims raised.” There is no doubt that the President will heed the judgment of the Court, as all Presidents have virtually always done. Therefore the Court is not being asked to provide an impermissible advisory opinion.

c. The United States is not injured by the judgment it is asking the Court to review. It is basic to the modern law of Article III standing that the petitioning party, i.e., the party asking the Article III court to act, must be “aggrieved,” or injured, by the action it is asking the court to review. For instance, in the typical standing case, where the plaintiff is asking the court to review the legality of the actions of the defendant, the plaintiff must show she has suffered an injury attributable to those acts. The same principle applies when considering a party’s standing to appeal . . . except that in such a case the question is whether the party is injured by the judgment of the court below. As Wright and Miller put the point: “The most obvious difference between standing to appeal and standing to bring suit is that the focus shifts to injury caused by the judgment rather than injury caused by the underlying facts. Although the determination of injury may not always be simple, standing to appeal is recognized if the appellant can show an adverse effect of the judgment and denied if no adverse effect can be shown.”

Accordingly, since the U.S. is the petitioning party in Windsor, it must show an “adverse effect” of the judgment below (or at least of the opinion below, as in Camreta — see the discussion in my first post). The U.S. ought to be able to satisfy this requirement in Windsor, however. Just as the Court held that the INS was “aggrieved” in Chadha for statutory purposes by virtue of the injunction the court of appeals entered against it, “prohibiting it from taking action it would otherwise take,” so, too, the injunction entered by the district court in Windsor and affirmed by the court of appeals requires the United States to take action it would not take in the absence of such judicial compulsion — namely, reimbursement to Windsor of the estate tax. The United States is injured by such a judgment in at least two obvious ways: It cannot enforce an act of Congress. And it must pay out money from the federal fisc. Either of those adverse effects should be sufficient for Article III standing.

And if, in the case of the statutory question in Chadha, the government’s “status as an aggrieved party . . . [wa]s not altered by the fact that the Executive may agree with the holding that the statute in question is unconstitutional,” 462 U.S. at 931, it is not obvious why the conclusion would be any different for purposes of Article III. Indeed, the Court in Chadha appears to have held as much, if only by implication: If the government’s agreement that the injunction in the court of appeals was correct had been enough to deny the Supreme Court jurisdiction under Article III, then the Court should have dismissed the INS’s appeal on constitutional grounds. But it held instead that that government’s appeal was properly before the Court as an Article III matter. Id. at 931 n.6, 939.

d. The United States and Windsor are seeking “precisely the same result.” In most (but not all) of the historical cases noted above in which the parties before the Court have concurred on the question presented, they have remained at odds about how the case should be resolved once that question is answered — i.e., about the ultimate judgment in the case. See, e.g., Cardinal Chemical Co. v. Morton International, Inc., 508 U.S. 83, 88 n.9 (1993) (holding that there is Article III jurisdiction in such a case).

Perhaps, then, one could argue that there is no Article III “case or controversy” where the Court is “confronted with the anomaly that both litigants desire precisely the same result.” Moore v. Charlotte-Mecklenburg Board of Education (emphasis added).

But this principle, which the Court has rarely had occasion to apply or elucidate, must admit of at least some exceptions. An Article III court has jurisdiction, for example, to enter a default judgment, approve a settlement, or accept and enter a plea of guilty in a criminal case — even though in each of these examples the parties are not in dispute about the resolution of the case.

More to the point, the only parties present in the Court in Lovett agreed on the “desired,” or proper, result there. And the same was true in the court of appeals in Chadha, and yet the Supreme Court in that case later held that the court of appeals did have Article III jurisdiction (affirming then-Judge Kennedy’s reasoning on that point). Thus, if the Court’s holding in Chadha remains good law, such agreement between the parties does not preclude Article III jurisdiction.

e. A party that receives all it has sought in the court below generally cannot appeal from it. The Court has stated that “[o]rdinarily, only a party aggrieved by a judgment or order of a district court may exercise the statutory right to appeal therefrom,” and has added a subsidiary principle that “[a] party who receives all that he has sought generally is not aggrieved by the judgment affording the relief and cannot appeal from it.” Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 333 (1980) (emphasis added).

Let’s call this the “Deposit Guaranty principle.” Does it preclude the Court’s jurisdiction in Windsor? After all, it is true that the United States in some sense “sought” precisely the judgment that the district court entered against it in Windsor (although the U.S. was not the moving party): In the “Conclusion” section of its merits brief before the district court, the U.S. stated that the court should grant Windsor’s motion for summary judgment (a judgment that requires reimbursement of the estate tax). Likewise, in its brief in the court of appeals it concluded that the court should affirm the judgment.

The U.S. might respond that, in fact, it did not actually receive “all” that it had “sought,” because the U.S. actually filed a motion to dismiss Windsor’s complaint — indeed, that was the only motion the U.S. filed regarding a judgment in the district court. But such a response would appear to be fairly formalistic; Professor Jackson could reasonably argue that the U.S. pleading was a motion to dismiss in name only. In the motion itself DOJ explained that it was submitting the motion “as a procedural matter, to ensure that this Court can consider arguments on both sides of the constitutional issue and to ensure that this Court has jurisdiction to enter judgment on the basis of those arguments,” and the motion concluded not with a simple request for dismissal, but with a much more conditional request: “If this Court agrees with BLAG on the constitutionality of Section 3 of DOMA,” DOJ wrote, “it should dismiss Plaintiff’s Amended Complaint and enter judgment for Defendants.” However, the U.S. motion to dismiss also stated that “[i]f this Court agrees with Plaintiff and the United States as to the constitutionality of Section 3 of DOMA, it should not dismiss the First Amended Complaint, but rather should enter such relief as is appropriate given the procedural posture of this action at the time of such determination.”

So perhaps it is fair to say that insofar as the U.S. “sought” anything from the lower courts, it “receive[d] all” that it sought, thus implicating the Deposit Guaranty principleprecluding the right of that party to appeal.

The primary problem with this argument, however, is that the Deposit Guaranty principle is not absolute (note the adverbs “ordinarily” and “generally” in the Deposit Guaranty formulation itself) and, more importantly, that it is not a constitutional rule at all, but instead a prudential rule of thumb of the Court’s own making. As the Court explained in Deposit Guaranty itself:

The rule is one of federal appellate practice, . . . derived from the statutes granting appellate jurisdiction and the historic practices of the appellate courts; it does not have its source in the jurisdictional limitations of Art. III. In an appropriate case, appeal may be permitted from an adverse ruling collateral to the judgment on the merits at the behest of the party who has prevailed on the merits, so long as that party retains a stake in the appeal satisfying the requirements of Art. III. [445 U.S. at 333-34 (emphasis added); accord Camreta, 131 S. Ct. at 2028-29 (“So long as the litigants possess the personal stake discussed above, an appeal presents a case or controversy, no matter that the appealing party was the prevailing party below.”).]

Accordingly, the Court has on occasion granted a petition of certiorari even from a party that prevailed below, such as in cases where a prevailing party has filed a petition for certiorari before judgment in the court of appeals. See, e.g., United States v. Nixon (granting United States’s petition even though it had prevailed in district court); United States v. United Mine Workers (same).

Chadha once again is illustrative here. The Court in that case specifically invoked the prudential, nonconstitutional Deposit Guaranty principle that “[a] party who receives all that he has sought generally is not aggrieved by the judgment affording the relief and cannot appeal from it” . . . only to then hold that the Deposit Guaranty principle did not preclude the Court’s jurisdiction to consider the INS’s petition (including on Article III grounds) in a case where the United States agreed that the lower court’s injunction against it was legally compelled.

Thus, it appears that unless the Court were prepared both to overrule its holding in Chadha and to insist, for the first time, that the Deposit Guaranty principle is not merely prudential but instead compelled by Article III, an argument based upon that principle should not preclude the Court from reaching the merits.

So, is there any argument against Article III jurisdiction that would not require the Court to repudiate its jurisdictional holdings in Chadha? Only one possibility occurs to me — namely, a combination of the last two of the five arguments I described above.

Recall that the fourth argument, derived from Moore v. Charlotte-Mecklenburg Board of Education, is that there is no Article III “case or controversy” where all of the parties before the Court “desire precisely the same result,” i.e., the same ultimate judgment in the case. And the fifthargument, derived from Deposit Guaranty National Bank v. Roper, is that “[a] party who receives all that he has sought [in the lower court or administrative proceeding] generally is not aggrieved by the judgment affording the relief and cannot appeal from it.” I tried to explain above why neither of these arguments, standing alone, appears to be a sufficient ground in Windsor for a holding that the Court lacks constitutional jurisdiction. But what if they were to be combined? For example, imagine the Court were to adopt this “rule”:

There is no Article III case or controversy where:

i. The party invoking the court’s jurisdiction has “received all that it has sought in the lower court” (or in the administrative proceeding from which the appeal is taken);

and

ii. All parties (not amici) present before the Court are seeking “precisely the same result” in the case — not merely the same answer to the question presented, but the same judgment.

Let’s call this the “Deposit Guaranty + Moore Rule.” Neither of its two conditions would itself be sufficient to foreclose a case or controversy; but both together would be. Or so the argument would go. Such a rule would at least reflect the intuition that there is something odd about an appeal where not only the plaintiff and the defendant, but also the court below, all agree that the plaintiff should prevail.

If the Court were to adopt such a rule, and if the Court were also to hold that BLAG is not a party with Article III standing in Windsor (a question I address in the next post), then it could conclude that it does not have Article III jurisdiction in Windsor without overruling one of its jurisdictional holdings in Chadha: Just as in Chadha, the lower court that entered the injunction would have had Article III jurisdiction, because Windsor, like Chadha, petitioned that court to remedy the injury she was suffering under the status quo (Windsor’s inability to obtain the tax she paid, analogous to Chadha’s impending deportation). But unlike in Chadha, there would not be Article III jurisdiction in the Supreme Court, because there would not be a party present in the Court seeking an alteration of the lower court’s judgment (whereas in Chadha itself, the Court assumed, without analysis, that Congress was a proper party respondent to the INS’s petition).

Such an argument would appear to thread the Chadha needle . . . but it would remain subject to at least two serious objections.

First, it would mean that the Court lacked Article III jurisdiction in Lovett, a result that none of the parties or the Justices in that case even contemplated.

Second, there is no obvious normative or practical reason why the Court should hold that there is Article III jurisdiction when only one of the two conditions is present, but not when both are. None of the usual rationales for finding a lack of Article III jurisdiction would appear to be implicated: The Court’s decision will resolve a concrete controversy and determine the legal relations between the parties (namely, whether the U.S. cuts Windsor a tax refund check) — there is nothing abstract, hypothetical or abstract about the issue or the dispute. There will be adequate, zealous advocacy on all aspects and sides of the question presented. It is the sort of question — the constitutionality of a federal statute — that falls within the wheelhouse of the “province and duty of the judicial department to say what the law is” (Marbury v. Madison). And it is not the sort of question, or a case, that falls outside the jurisdiction of the federal courts altogether or that the federal judiciary should stay out of categorically in order to allow the political branches to resolve: No one could contend, for example, that the district court lacked jurisdiction to enter the judgment in Windsor. Indeed, all would agree it is the sort of dispute, and question, that the Supreme Court itself could adjudicate if only the case had taken a different course in the courts below.

Say, for example, this were a case in which district court and the court of appeals had ruled against Windsor. In such an event, Windsor would unquestionably have standing to petition the Court, even though the U.S. and Windsor would take precisely the same views in the Court in such a case as they are taking here, and be seeking “precisely the same result.” It is almost inevitable that there will be a case at some point in which a different court of appeals would hold that DOMA Section 3 is constitutional. What constitutional value would be served, one might ask, to require the Court to await such a case before it can consider the question of DOMA’s constitutionality — in effect to require spouses in same-sex marriages to repeatedly sue the U.S., and repeatedly prevail, and yet to preclude the Supreme Court from adjudicating the question until there is a case where the plaintiff loses — that is, until such time as there is a circuit split? If there would be Article III jurisdiction in that case, why not in this one?

* * * *

In my next post, I’ll discuss the Court’s second added question in Windsor — namely, whether BLAG has appellate standing — and I’ll offer some thoughts on what would happen in the unlikely event the Court holds that it lacks jurisdiction to consider any of the petitions in Windsor.

Email Digest Sign-Up

Merits Case Pages and Archives

The justices met on Friday for their February 16 conference; our "petitions to watch" for that conference are available at this link. The calendar for the February sitting, which begins on February 20, is available on the Supreme Court's website.

Major Cases

United States v. Microsoft Corp.Whether a United States provider of email services must comply with a probable-cause-based warrant issued under 18 U.S.C. § 2703 by making disclosure in the United States of electronic communications within that provider's control, even if the provider has decided to store that material abroad.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin's redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin's redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court's test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of February 16, 2018

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the due process clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of putative plaintiffs without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can be reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the U.S. Court of Appeals for the 6th Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Silvester v. Becerra (1) Whether the U.S. Court of Appeals for the 9th Circuit improperly applied lenient scrutiny in a Second Amendment challenge to the application of California's full 10-day waiting period to firearm purchasers who pass their background check in fewer than 10 days and already own another firearm or have a concealed carry license; and (2) whether the Supreme Court should exercise its supervisory powers to cabin the U.S. Court of Appeals for the 9th Circuit's concerted resistance to and disregard of the Supreme Court's Second Amendment decisions.